On Tuesday, the Aspen Election Commission decided to punt on two public-records requests to view ballots that were cast in the city’s 2011 municipal election held in May.

Commissioner Ward Hauenstein said that while he favors an open and transparent government, he received outside advice from a Denver attorney who said the Election Commission could not rule on the matter because it isn’t the custodian of election records.

“According to information provided by you, the Aspen Election Commission does not have personal custody of the paper ballots in question,” attorney John S. Zakhem wrote. “Therefore, the [commission] is not the custodian of the paper ballots and is not obligated to produce them in response to the [Colorado Open Records Act] request.”

That determination is in line with recent City Attorney’s Office statements, which hold that City Clerk Kathryn Koch is the official custodian of municipal records, including election ballots.

Officially, the commission voted 3-0 to take “no further action” on the CORA requests upon the advice of legal counsel, said Koch, who also is a member of the commission. Bob Leatherman is the third member.

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The requests were made by Marilyn Marks, of Aspen, and Harvie Branscomb, of El Jebel, who have been heavily involved in election-transparency initiatives across the state. A third request to examine the ballots, from Aspenite Elizabeth Milias, recently was withdrawn.

On Monday, Aspen City Council members told Hauenstein they would not support efforts to make public a memorandum from City Attorney John Worcester that advises councilmen and commissioners on the role of the Election Commission and whether it had the right to seek independent counsel.

Mayor Mick Ireland said that although the contents of the memo are probably nothing that would harm the city, the fact that Marks is suing the city over the right to view 2009 election ballots creates a quandary over releasing the information.

“I would actually like to release that memo,” Ireland told Hauenstein. “I don’t know how it affects our litigation posture. … But right now, every time I sit down to do an email, I have to think that somebody is going to demand my computer and see what I said, even if it’s a personal email, because I no longer see the opposition as acting in good faith.”

Ireland defeated Marks in the 2009 mayor’s race and in recent years has been the target of frequent criticism from Milias, operator of the Red Ant political blog site, as well as from Marks.